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Nov. 25, 1998


Indict Ken Starr?

By Robert Parry

The Republicans on the House Judiciary Committee gave Kenneth Starr a standing ovation after his day-long testimony, an outpouring of appreciation for the man who had been their champion against President Clinton for four-plus years.

The national news media also gave the conservative special prosecutor mostly high marks for his softly modulated presentation of the case for impeaching the president over alleged perjury and obstruction of justice.

But what was missed in the positive postmortems was the fact that -- if indeed "no man is above the law" -- then Starr might be in as much of a perjury-obstruction pickle as Clinton.

Arguably, Starr's testimony contained the basis for felony indictments on at least two significant points: how his prosecutors handled Monica Lewinsky on Jan. 16 and whether Starr's office leaked secret grand jury material.

Starr's false statements also were not slips of the tongue. His deceptive testimony was the culmination of misleading public statements -- over many months and often in writing -- and now under oath before Congress.

Most blatantly, Starr sought to cover up his office's pressure on Lewinsky to wear a wire and to tape conversations with other figures in the case, including possibly President Clinton. Starr also squirmed in face of evidence that he might have obstructed justice by misleading a judicial investigation examining whether he and his staff violated grand jury secrecy.

Ironically, Starr's possible offenses mirrored the allegations against President Clinton. To hear Starr quibble about the meaning of "rule 6(e)" was reminiscent of Clinton's grand jury dissertation on the definition of "sex."

To watch Starr hide behind the "pendency" of litigation recalled Clinton's use of privilege claims. To listen to Starr denounce William Ginsburg's complaint of bullying tactics as "a calumny" brought to mind Clinton's early finger-waving denial on having "sexual relations with that woman."

If anything, however, the case against Starr was even more stark and his deceptions less justifiable than with Clinton. While the president arguably was trying to conceal an embarrassing personal indiscretion and protect his family, Starr was making false statements apparently to cover his political and legal flanks.

Normally hypocrisy is a good journalistic angle. But the national media chose to go soft on Starr. As Sally Quinn noted in The Washington Post, "Starr is a Washington insider, too." [WP, Nov. 2, 1998] His status bought him leniency.

At the hearings on Nov. 19, Democratic counsel Abbe Lowell opened the door on Starr's false testimony by asking the special prosecutor about press statements that Starr had issued in the early weeks of the Clinton-Lewinsky scandal.

In those releases, Starr bristled at allegations that his prosecutors had bullied Lewinsky. Starr sought to portray the questioning of Lewinsky in a gentle light, almost as a pleasant trip to the mall for shopping and dining.

"Don't you think your statement to the press, to the Congress, and to the American people gave a very distorted picture of the facts of the night and the day that you first confronted Monica Lewinsky?" asked Lowell.

"Well, I think not," Starr responded, "and we can obviously discuss it."

LOWELL: "Well, let's do that line by line, because it will be short, but I think it will be illustrative. If you look at the first line of your press statement, it states: ‘Monica Lewinsky consented to meet with several FBI agents.’ …

"In Monica Lewinsky's sworn testimony,… she testified under oath that .. she was … accosted by agents who flashed their badges at her. She asked to see her attorney, was told that that wasn't such a good idea. She was then asked to go upstairs to discuss how much trouble she was in, and then she reluctantly went upstairs to meet with your staff.

"Do you think your statement that Monica Lewinsky ‘consented’ to meet with several agents doesn't distort the picture of what really happened that day?"

STARR: "Well, I think it was consensual. That is we made it clear that she was not under arrest and that she was in fact at liberty to make a decision as to what she wanted to do."

LOWELL: "Well, if you look at the second line of your quote -- of your press statement, you said, ‘during the five hours while awaiting her mother's arrival, Ms. Lewinsky drank juice and coffee, ate dinner at a restaurant, strolled around the Pentagon City mall and watched television.’ Do you remember making that statement to the press?"

STARR: "Yes, I do."

LOWELL: "But your statement to the press, Mr. Starr, doesn't include the facts that Ms. Lewinsky swore to, that she was scared and was crying a lot of the time. When she asked to see her attorney -- quote – ‘She would not be able to help herself with her attorney there,’ she was told; that she was threatened with going to jail for -- quote ‘27 years’; that she was not there for the five hours that your press statement says, but was there for over 10 hours; and that when she asked to call her mother to discuss what you were discussing with her, your deputy, Jackie Bennett, said: ‘You're 24. You're smart. You're old enough. You don't need to call your mommy.’

"That wasn't in your statement to the press that day, was it?"

STARR: "No, it wasn't, Mr. Lowell. And let me explain what press statements are designed to do." Laughter in the committee room interrupted Starr’s answer.

"The purpose of this press release," Starr explained later, "was to respond to specific allegations. …What we were responding to were allegations that were utterly unmeritorious."

Though his big words impressed many pundits, Starr's answers revealed that he had few qualms about disseminating misleading press releases. But he insisted that court proceedings and statements under oath were a different matter.

"As a product of the law and of the courts, I have come to an unyielding faith in our court system: our system of judicial review, the independence of our judges, our jury system, the integrity of the oath, and the sanctity -- yes, the sanctity -- of the judicial process," Starr said.

Yet, while under oath before Congress, Starr continued to defend his inaccurate public statements. Questioned by Clinton's lawyer David Kendall in the evening. Starr denied that his prosecutors urged Lewinsky to wear a body wire.

"One of the purposes was to get Ms. Lewinsky to wear a recording device and surreptitiously record Jordan or the president, was it not?" Kendall asked.

"It was not," Starr responded. "And I know that there is testimony, and this has been referred to, but let me explain. She was asked and given the opportunity, which she turned down, to be a cooperating witness. … We said one of the things that a cooperating witness can do is to assist us in consensual monitoring. We described that at a high level of generality. …"

KENDALL: "You may have read the Time Magazine essay … by Mssrs. [William] Ginsburg and [Nathaniel] Speights in which they state the following: ‘The government didn't just want our client to tell her story. They wanted her wired. They wanted her to record telephone calls with the president of the United States, Vernon Jordan and others at their will.’ You're familiar with Ginsburg's charge?"

STARR: "Ginsburg is wrong, and he must know that he is wrong. He was wrong then, and it is a calumny to repeat that now. Ginsburg was not known for his consistency of articulating positions.

"I would say that he was rather fast and loose with the facts. And if you are going to rely in this proceeding on a Time magazine essay by Bill Ginsburg, then I think the standards are not quite as lofty as I thought they would be this evening. …"

KENDALL: "You categorically denied wanting to have Ms. Lewinsky wear a wire or secretly tape-record the president or Jordan when the charge was made in the Time article, did you not? You categorically denied that. …"

STARR: "I believe that we did, but I'm just not recalling specifically how we did it …"

KENDALL: "Your later letter to Steve Brill [editor of Brill’s Content]. … You say, ‘This is false. This office never asked Ms. Lewinsky to agree to wire herself for a conversation with Jordan or the president. You cite no source at all, nor could you, as we had no such plans.’

"Have I read correctly your letter?"

STARR: "Yes, you have. … I do have very vivid recollections of discussions with respect to the circumstances of the Ritz-Carlton. …"

KENDALL: "Tab 13 is the FBI 302 Form describing -- that's not Ginsburg or Speights, is it? That's one of your own agents. … If you look at page five of that exhibit, it says -- at 11:22 p.m. It says, "AIC [Assistant Independent Counsel] Emmick talked to Bernard Lewinsky" -- that is Ms. Lewinsky's father -- "cooperation and interview, telephone calls, body wires, and testimony were mentioned." Do you see that?"

STARR: "Yes, I do."

KENDALL: "And then do you see down below, below the 11:37 entry, Ms. Lewis has arrived on the scene -- Ms. Lewinsky's mother -- and she expresses -- Ms. Lewinsky has expressed concern about what's been requested of her. She says, according to the FBI 302, ‘What if I partially cooperate?’ That's as recorded by the FBI agent. ‘Marsha Lewis asked what would happen if Monica Lewinsky gave everything but did not tape anything?’

"Do you see that?"

STARR: "Yes, I do."

Kendall also cited Lewinsky’s grand jury testimony in which she described the demand for her to wear a body wire. "In fact, she said that she was told on Friday, January the 16th, by your agents, that she'd have to place calls or wear a wire to see -- to call Betty and Jordan and possibly the president," Kendall said, before reading the actual exchanges between Lewinsky and a grand juror.

"Did you tell them you didn't want to do that?" a grand juror asked Lewinsky.

"Yes," the young woman answered.

"Was that Ms. Lewinsky's testimony?" Kendall asked Starr.

"Yes, that is her testimony," Starr admitted.

Though Kendall chose not to hammer home the point, he had nailed Starr in a clear a case of false testimony. Between the FBI’s reporting and Lewinsky’s testimony, it was obvious that Starr had misled the committee when he termed the bullying allegations a "calumny" and "utterly unmeritorious."

Nevertheless, Starr himself made no effort to correct his earlier misleading testimony or to apologize to Ginsburg for the insults.

A second area of false testimony was Starr's insistence that he did not violate grand jury secrecy -- known as Rule 6(e). U.S. District Court Judge Norma Holloway Johnson has found prima facie evidence that Starr's office was the source for two dozen leaks. She has ordered Starr to present evidence to the contrary.

Starr's problem with this issue revolves around his insistence that Rule 6(e) pertains only to direct testimony before a grand jury, although court rulings have established a much broader prohibition on disclosures.

"It [Rule 6e] compasses not only the direct revelation of grand jury transcripts but also the disclosure of information which would reveal 'the identities of witnesses or jurors, the substance of testimony, the strategy or direction of the investigation, the deliberations or questions of the jurors, and the like,'" the U.S. Court of Appeals declared in 1981, as cited by Judge Johnson.

Rather than simply admit that his office had violated the law, Starr mounted what appears to be an obstruction of justice. He collected affidavits from more than 90 members of his staff who swore that they had abided by Rule 6(e). The trick apparently was that Starr was applying his definition of Rule 6(e), not the judge's.

Rep. John Conyers, D-Mich., zeroed in on this issue during his questioning of Starr. "This summer, it became clear that your office had spoken to reporters on background, [with you] telling Steven Brill, ‘nothing improper about leaking, if you are talking about what witnesses tell FBI agents.’"

In response to Conyers, Starr continued to insist that "we do not issue or release that kind of [6(e)] information. That is our position."

Then, Rep. Barney Frank, D-Mass., narrowed the question. "Are you aware of any member of your staff who, in fact, committed a violation, as defined by Judge Johnson?" Frank asked.

Starr answered: "We do not think that we have violated 6(e) at all."

Frank followed up: "As she defines 6(e), are you aware of any member of your staff who committed a violation as she defined it?"

Starr kept bobbing and weaving: "Well, I -- with all respect, I think that is an unfair question." Starr then retreated to a claim that Johnson's litigation was sealed and that he could not violate the seal.

Frank: "If you didn't do any of the leaking, why not just tell us. ... I don't understand why you wouldn't just tell us."

But Starr would not provide a straightforward answer, adding simply: "We believe that we have completely complied with our obligations under 6(e)."

Starr continued to duck questions about leaks later when Reps. Zoe Lofgren and Maxine Waters – two California Democrats -- urged that he help settle the matter by releasing reporters from their pledges of confidentiality.

That presumably would have let reporters identify any members of Starr’s staff who had leaked confidential information and help Judge Johnson resolve the dispute of possible criminality.

But Starr balked. "I believe that it would ... be unwise and inappropriate for me at this time in this setting. …"

Waters: "Your answer today is you would be unwilling to do that."

Starr: "I believe it would be unwise at this time, with litigation under seal still proceeding. I'm very respectful of the orderliness of that proceeding."

Pressed again by Waters on his reasoning for refusing to allow reporters to cooperate, Starr added, "because of the pendency of the litigation."

Without the reporters freed to cooperate -- and with Starr submitting affidavits from his staff swearing no violations of 6(e) -- Judge Johnson's investigation was likely to be thwarted.

By blocking the best sources of evidence, Starr seemed determined to obstruct, not advance, justice.

But the Washington news media seemed equally determined to give the special prosecutor a pass, with his deceptions meriting hardly a notice in the long articles about his case for Clinton’s impeachment.

Under the principle of "equal protection under the law," it appears that some miscreants may be more equal than others.

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